Resolving Disputes via Mediation WIPO Conference on IP Dispute Resolution Basel, May 2015 Verena Neuhold - Legal Counsel - Roche Diagnostics

1. 2 examples of b2b disputes resolved by mediation

2. approach to identifying the suitable dispute resolution method

3. a glance from the top of a mountain

Shuttle Mediation – Boston, USA The Case

Contract partner brought suit in District Court in Boston, Mass, USA

Roche took the initiative to propose mediation & other party agreed

• Co-Development Agreement

• Relationship over 10 years / work on this project for over 4 years

• Project could not be finished succesfully

• Both contract partners based in Europe, project «located» in Europe

Shuttle Mediation The Mediation: 1day in Boston

Settlement was reached after 13 hours!

Shuttle Mediation The Preparation & Factors for Success

Intense & diligent preparations were key to success

• Choosing the mediator: a former litigator

• Mediation Institution: JAMS

• Advance information to mediator: written briefs

• Mediation was scheduled for 1 day (with an extra day if needed)

• Attendees: project team members & authorized managers inhouse counsel & external counsel

Direct Mediation The Facts

• Tooling Agreement in place & supply agreement under negotiation

• companies located in Austria & Germany

• products manufactured with the tools did not meet specifications launch of a Roche instrument at risk

• Roche terminated agreement and requested handing over of the tools (which were in Roche’s property)

• The partner denied Roche access to the tools & requested a significant payment

During negotiations the partner agreed to hand over the tools and both parties agreed to mediation to settle their open financial claims

Direct Mediation The Mediation in Munich

no settlement was reached neither party initiated litigation

• Mediator: former German High Court Judge

• No mediation institution: ad hoc mediation

• Advance information to Mediator: written briefs

• Mediation was scheduled for 1 day

• Attendees: project team members & authorized managers & inhouse counsel

Statement of a senior manager of a Swiss Company

«When we are engaged in litigation, I hand over the case to my lawyers. At court, often I do not fully understand the «legalese» and the topics the judges and lawyers discuss. I have no longer control over the matter.

In mediation, I remain in control, I continue to play along. It is my responsibility – and my opportunity – to ensure focus on relevant business matters and to work toward a sustainable solution.»

Mediation

Focus on business needs and interests Autonomy on process & content

Relationship / Appreciation

Time & Resources & Cost

Approach to Dispute Resolution identifying suitable dispute resolution method

No Dispute Resolution Policy

Conflict Screening

business needs? Core of dispute?

type of partnership

nationality of parties / «location» of dispute

financial exposure

time

confidentiality

remedies & enforcement

case management & process autonomy

chances & risks in state court

…

Jimmy Carter US President 1977 – 1981 Founder of the Carter Center – a nonprofit organization to fight disease, hunger, conflict, and oppresion around the world

«Successful negotiations involve personal and emotional elements and

demand creative approaches in finding ways out of stalemates.»

In A Conversation On Peacemaking with James Laue at the fifth National Conference on Peacemaking and Conflict Resolution, Charlotte, N.C., 1991.

Successful Dispute Resolution … … at times requires taking a glance from the top of a mountain

Doing now what patients need next